On appeal

Continuing our series on the implications of recent significant cases,
Anthony Korn, a barrister at 199 Strand Chambers, looks at the issues

Injury to feelings award Essa v Laing Ltd, EAT, 2003

Can an award for injury to feelings be made where the extent of the injury
is unforeseen by the employer? This issue is addressed by the Employment Appeal
Tribunal in Essa v Laing Ltd, 2003

Essa, who is Welsh and of black Somali descent, was employed by Laing as a
construction worker. He was a successful amateur boxer who had represented
Wales on a number of occasions before turning professional.

In June 1999, he began work on the Millennium Stadium, and was subjected to
petty acts of humiliation and insults. However, Essa’s complaint of unlawful
racial discrimination followed a supervisor’s remark, who, in front of a gang
of 15 men, said "make sure that black c*** doesn’t wander off",
referring to Essa.

Essa complained to his employer, but considered that his complaint was not
taken seriously and thereafter he was taunted by other employees.

He took his case to an employment tribunal claiming unlawful racial
discrimination and victimisation contrary to the Race Relations Act 1976. The
tribunal upheld Essa’s complaint of race discrimination, but rejected his
complaint of victimisation.

At the hearing, evidence was given that as a result of the racial abuse,
Essa had suffered a dramatic personality change. He was said beforehand to have
been a "kind, cheerful, happy go-lucky and hardworking individual…
careful of the company he kept, who did not drink, smoke or swear and took a
passionate interest in boxing". Afterwards he was described as
"morose, withdrawn… mixing with undesirable company and to have smoked,
drank and used bad language. He lost his interest in boxing and his Welsh
identity was undermined". He would not get out of bed to look for work.

The tribunal ruled that it was only entitled to award compensation for such
injury as was "a reasonably foreseeable" consequence of the unlawful
discrimination Essa had suffered and concluded that although he had suffered
hurt and humiliation, his reaction was "extreme" and unforeseeable.
It assessed compensation for injury to feelings at £5,000, noting the abuse was
a "one-off incident" for which Essa had received an apology.

Essa appealed that the award should have been higher and argued the injury
he suffered was a direct consequence of his employer’s behaviour.

EAT decision

Allowing the appeal in part, the EAT ruled the employment tribunal was wrong
to restrict its award to loss which was "reasonably foreseeable",
since a claim for unlawful race discrimination was a statutory wrong.
Therefore, compensation could be recovered for any loss which was a direct
consequence of the unlawful discriminatory act including the psychological harm
suffered by Essa.

However, the EAT sent the case back to the employment tribunal to consider
whether the loss suffered by Essa was a direct consequence of the racial abuse
he had suffered or his own actions such as "an unreasonable refusal or
failure to seek and follow medical advice" he had been given.

The EAT considered the £5,000 awarded was "within the appropriate
bracket" and refused to increase the award.

Key points

– An award of £5,000 for injury to feelings for a one-off act of racial
abuse lay within the appropriate bracket for such unlawful racial
discrimination

– Compensation for unlawful discrimination can be awarded where the loss
suffered could not have been reasonably foreseen by the employer, provided the
loss is a direct consequence of the employer’s action

– Compensation for discrimination should not be awarded where the loss is
caused by the complainant’s own actions such as refusal to undergo medical
treatment or follow medical advice.